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FIFTH
SECTION
CASE OF
KRIVONOZHKO AND DEMCHENKO v. UKRAINE
(Applications
nos. 7435/05 and 7715/05)
JUDGMENT
STRASBOURG
6 November 2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Krivonozhko and Demchenko v. Ukraine,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Rait
Maruste,
President,
Volodymyr
Butkevych,
Renate
Jaeger,
Mark
Villiger,
Isabelle
Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
Zdravka
Kalaydjieva,
judges,
and Claudia Westerdiek, Section
Registrar,
Having
deliberated in private on 7 October 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in two applications (nos. 7435/05 and 7715/05)
against Ukraine lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by two Ukrainian nationals,
Mr Valeriy Nikitovich Krivonozhko and Mr Vladimir Alekseyevich
Demchenko (“the applicants”), on 15 February 2005.
- The
Ukrainian Government (“the Government”) were represented
by their Agent, Mr Y. Zaytsev.
- On
15 November 2006 the Court decided to communicate the applications to
the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the applications at
the same time as their admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicants were born in 1946 and 1951 respectively
and live in Lysychansk, in the Lugansk region, Ukraine.
- At the material time they worked at the State
Machinery and Repair Plant (ДВАТ
«Ремонтно-механічний
завод»
– “the plant”). In 2004 they were dismissed. Before
the domestic authorities they were represented by a lawyer, M.
- On
13 March 2000 the Lugansk Regional Court of Arbitration
instituted bankruptcy proceedings against the plant.
- On
10 April 2001 the court commenced the procedure of
financial rehabilitation of the plant and appointed a bankruptcy
trustee responsible for that procedure. It is not clear from the
materials submitted whether the rehabilitation procedure has ended or
is still pending.
- On
12 October 2004 the Commercial Court of
the Lugansk Region (the former Lugansk Regional Court of
Arbitration) ordered the bankruptcy trustee to
inform the creditors of the measures adopted in the course of the
debtor’s rehabilitation and to provide them with financial
documents concerning the payment of salary arrears. The applicants
maintained that the trustee did not comply with this decision.
- By the decisions of 29 November 2004, 11 April
and 6 June 2005 the Labour Disputes Commission and the
Lysychansk Town Court awarded the first applicant salary arrears and
other payments due to him from his former employer in the total
amount of 13,539.56 Ukrainian hryvnias (UAH).
- By the decisions of 29 November 2004, 5 April
and 4 May 2005 the same authorities awarded the second applicant
salary arrears and other payments due to him from his former employer
in the total amount of UAH 6,281.11.
- Furthermore, in decisions of 5 and 11 April 2005
the Lysychansk Town Court, inter alia, ordered the applicants’
reinstatement.
- In
so far as the above-mentioned decisions became final, the local
department of the State Bailiffs’ Service instituted
proceedings to enforce them.
- According
to a letter of 6 September 2006 from the local department of the
State Bailiffs’ Service, the parts of the decisions of 5 and
11 April 2005 relating to the applicants’ reinstatement
were fully enforced and the relevant enforcement proceedings were
terminated by decisions of the State Bailiffs’ Service of 17
April 2005. The applicants submitted that in fact they were not
reinstated as they were still not admitted to their workplaces. They
did not, however, inform the Court whether they had challenged before
the domestic courts the decisions of 17 April 2005 to terminate the
enforcement proceedings in question.
- The
applicants requested the local prosecutor’s office to intervene
in the enforcement proceedings and to institute criminal proceedings
against the relevant persons, but apparently to no avail.
- The
applicants maintained that these decisions remain unenforced.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law is summarised in the judgment of Sokur
v. Ukraine (no. 29439/02, § 17-22, 26 April 2005).
THE LAW
I. JOINDER
OF THE APPLICATIONS
- The Court considers that, pursuant to Rule 42 § 1
of the Rules of Court, the applications should be joined, given their
common factual and legal background.
II. THE LENGTHY NON-ENFORCEMENT OF THE DECISIONS IN THE
APPLICANTS’ FAVOUR
- Relying
on Articles 6 and 13 of the Convention and Article 1 of
Protocol No. 1, the applicants complained about the lengthy
non-enforcement of the decisions given in their favour. These
Articles provide, in so far as relevant, as follows:
Article 6 § 1
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair and public hearing
within a reasonable time by an independent and impartial tribunal
established by law. ...”
Article 13
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
Article 1 of Protocol No. 1
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest ...”
A. Admissibility
- The
parties did not submit any observations in respect of the
admissibility of these complaints.
1. As regards the decision of 12 October
2004
- The Court notes that this decision concerned no more
than an incidental matter which arose in the course of the bankruptcy
proceedings against the debtor company. Having examined this
complaint, it finds nothing in the case file which might disclose any
appearance of a violation of these Convention provisions.
- It follows that this part of the applications must be
rejected as being manifestly ill-founded, pursuant to Article 35 §§
3 and 4 of the Convention.
2. As regards the parts of the decisions of 5 and
11 April 2005 relating to the applicants’ reinstatement
- The
Court observes that, according to the documents submitted by the
parties, the parts of the decisions of 5 and 11 April 2005
relating to the applicants’ reinstatement were fully enforced
by 17 April 2005.
- The
applicants contested this fact contending that they were still not
admitted to their workplaces.
- The
Court finds that it is not clear from the parties’ submissions
whether the relevant parts of the decisions at issue have been
enforced in full. However, it assumes that these parts of the
decisions were enforced by 17 April 2005, given the fact that,
on that date, the Bailiffs’ Service established that the
applicants were reinstated, which the applicants did not contest at
the national level (see, mutatis mutandis, Gavrilenko v.
Ukraine, no. 24596/02, § 18, 20 September 2005).
- However,
the fact that the decisions in the applicants’ favour were
enforced does not deprive them of their victim status in relation to
the period during which the court decisions in their favour remained
unenforced (see Romashov v. Ukraine, no. 67534/01, §§ 26-27,
27 July 2004). Given that these decisions were
enforced within nine days, at maximum, the Court finds that
this part of the applications must be rejected as being manifestly
ill-founded, pursuant to Article 35 §§ 3 and 4 of the
Convention.
3. As regards the remainder of the decisions in the
applicants’ favour
- The Court notes that this part of the applications is
not manifestly ill-founded within the meaning of Article 35 § 3
of the Convention. It further notes that it is not inadmissible on
any other grounds. It must therefore be declared admissible.
B. Merits
- The
parties did not submit observations on the merits.
- The
Court notes that the decisions in the applicants’ favour have
not been enforced for more than three years and six months.
- The
Court observes that it has already found violations of Article 6 § 1
of the Convention and Article 1 of Protocol No. 1
in cases similar to the present one (see, among other authorities,
Voytenko v. Ukraine, no. 18966/02, §§ 43
and 55, 29 June 2004, and Dubenko v. Ukraine,
no. 74221/01, §§ 47 and 51, 11 January 2005).
It finds no ground to depart from its case-law in the present case.
- There
has, accordingly, been a violation of Article 6 § 1
of the Convention in respect of the lengthy failure to enforce the
decisions in the applicants’ favour and a violation of
Article 1 of Protocol No. 1 in the present case.
- The
Court does not find it necessary in the circumstances to examine the
same complaints under Article 13 of the Convention (see Derkach
and Palek v. Ukraine, nos. 34297/02 and 39574/02, § 42,
21 December 2004).
III. OTHER COMPLAINTS
- The applicants also complained under Article 6 § 1
of the Convention about the alleged inability of M. to represent them
effectively before the courts and other State authorities. They also
relied on Articles 1, 3, 14 and 17 of the Convention in relation
to the issue of non-enforcement examined above.
- Having regard to all the material in its possession,
the Court finds that these complaints do not disclose any appearance
of a violation of the rights and freedoms set out in the Convention
or its Protocols. It follows that this part of the applications must
be rejected as being manifestly ill-founded, pursuant to Article 35
§§ 3 and 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicants claimed UAH 38,228
each in respect of pecuniary damage. In support of their claim, they
submitted copies of certificates issued by the debtor company in
which it had acknowledged the applicants’ salary arrears for
the period from August 2002 to September 2007 in the stated amount.
The first and second applicants further claimed EUR 15,000 and
EUR 10,000 respectively in respect of non-pecuniary damage.
- The
Government submitted that they did not question the necessity to
enforce the decisions in the applicants’ favour. However, they
found these claims exorbitant and unsubstantiated. Furthermore, they
contended that the claims in respect of pecuniary damage did not
relate to the subject matter of the present case.
- The
Court notes that it is undisputed that the State still has an
outstanding obligation to enforce the decisions at issue. However,
the Court does not discern any causal link between the violations
found and the remainder of the pecuniary damage alleged; it therefore
dismisses these claims. The Court further takes the view that the
applicants must have sustained non-pecuniary damage as a result of
the violations found. Making its assessment on an equitable basis, as
required by Article 41 of the Convention, the Court awards the
applicants EUR 800 each under this head.
B. Costs and expenses
- The
applicants claimed EUR 1,000 each for the legal costs and
expenses they had incurred before the domestic authorities and the
Court. In support of their claim, they submitted copies of
certificates issued by M., acknowledging that each of the applicants
had paid him the sum mentioned for his legal services.
- The
Government maintained that this amount was manifestly excessive and
unsubstantiated.
- The Court reiterates that, in order for costs and
expenses to be included in an award under Article 41, it must be
established that they were actually and necessarily incurred in order
to prevent or obtain redress for the matter found to constitute a
violation of the Convention and were reasonable as to quantum (see,
among many other authorities, Nilsen and Johnsen v. Norway [GC],
no. 23118/93, § 62, ECHR 1999-VIII). The Court considers
that these requirements have not been met in the instant case. In
particular, it notes that costs of the domestic proceedings claimed
by the applicants have no connection with the violation found in the
present case. The Court further notes that the applicants were not
legally represented before it and, as their cases are not
particularly complex, they were not required to be.
Regard
being had to the information in its possession and to the above
considerations, the Court makes no award under this head.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Decides to join the applications;
- Declares the complaints under Article 6 § 1
and Article 13 of the Convention and Article 1 of Protocol No. 1
relating to the State authorities’ failure to pay the
applicants the amounts awarded to them in the decisions of
29 November 2004 and 5 and 11 April, 4 May and 6 June
2005 admissible and the remainder of the applications inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there has been a violation of Article
1 of Protocol No. 1;
- Holds that there is no need to examine the
complaints under Article 13 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicants, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts:
(i) the
outstanding debt in accordance with the decisions of 29 November 2004
and 5 and 11 April, 4 May and 6 June 2005;
(ii) EUR 800
(eight hundred euros) each in respect of non-pecuniary damage, to be
converted into the national currency of the respondent State at the
rate applicable at the date of settlement, plus
any tax that may be chargeable to the applicants;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicants’
claims for just satisfaction.
Done in English, and notified in writing on 6 November 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Rait
Maruste
Registrar President
